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Even after the European Court of Justice has rejected Ireland’s action against the directive on data retention, the European Commission, the German and the Irish autorities are refusing to release Ireland’s reasoning to the Court.

To justify its decision, Ireland writes:

If a request for Ireland’s submission to the European Court of Justice was submitted to this Department, it would be refused as our Freedom of Information legislation clearly states that it does not apply to a record is created by the Office of the Attorney General other than an administrative record. Section 46(1) refers. Whilst in this case the record was created on behalf of the AG, it is still the view of the section that should we receive a similar FOI then Section 4.6(1) would apply. It would not be appropriate for the record to be released on foot of an FOI request in Germany if the same request would be refused in Ireland.

Therefore in view of the foregoing please advise your counterparts in Germany that our view is that the record should be refused.

The European Commission and German autorities have also refused to release the document under their freedom of information rules.

The content of Ireland’s application continues to be potentially useful as the German Federal Constitutional Court will hear several complaints against data retention in December. Earlier this year the Court decided it would review whether Europe transgresses the competences conferred to it by the member states. In its application to the European Court of Justice, Ireland presumably set out reasons for why this is the case with the controversion directive on data retention.

We are thus still looking for somebody who will succeed in getting hold of a copy of Ireland’s application to the ECJ (case number C‑301/06) via the EU, a member state or by other means.